Clifornia's Three Strikes Law - Conviction From Another Jurisdiction
Does a Prior Conviction From Another Jurisdiction Constitute ''Strike'' Under the California Three Strikes Law?
A prior conviction from another jurisdiction constitutes a strike under the Three Strikes law if the offense includes all of the elements of a violent or serious felony as described in Penal Code sections 667.5, subdivision (c), or 1192.7, subdivision (c). (Pen. Code, 667, subd. (d)(2), 1170.12, subd. (b)(2); see People v. Myers (1993) 5 Cal.4th 1193, 1201; People v. Avery (2002) 27 Cal.4th 49, 53.)
Penal Code section 1192.7, subdivision (c)(31), defines a serious felony to include "assault with a deadly weapon."
In determining whether a prior conviction qualifies as a strike, the trier of fact may consider the entire record of the prior conviction excepting only material precluded by the rules of evidence or other statutory limitation. (People v. Woodell (1998) 17 Cal.4th 448, 453.)
If the record fails to disclose facts of the offense actually committed, the factfinder must presume the prior conviction was for the "least offense punishable" under foreign law. (People v. Miles (2008) 43 Cal.4th 1074, 1083.)
A prior conviction constitutes a strike under the Three Strikes law only if the conviction was for a serious felony, as defined by section 1192.7, subdivision (c), or a violent felony as defined by section 667.5, subdivision (c). ( 667, subd. (d)(1); People v. Rodriguez (Rodriguez) (1998) 17 Cal. 4th 253, 261-262.)
Similarly, a prior conviction constitutes a serious felony for the purpose of a five-year enhancement only if the conviction was for a serious felony as defined by section 1192.7, subdivision (c). ( 667, subd. (a).)
An assault under section 245, subdivision (a)(1) ( 245(a)(1)) qualifies as a serious felony in three situations. These are where the defendant (1) personally inflicted great bodily injury on any person other than an accomplice ( 1192.7, subd. (c)(8)), (2) personally used a firearm (ibid.), or (3) personally used a dangerous or deadly weapon ( 1192.7, subd. (c)(23)).
Conversely, an assault under 245(a)(1) does not qualify as a serious felony where the defendant (1) aided and abetted the assault without either personally inflicting great bodily injury or using a firearm, or (2) committed the assault with force likely to cause but not actually causing great bodily injury, and without using a deadly weapon. (Rodriguez, supra, 17 Cal.4th at p. 261.)
"The least adjudicated elements of the crime defined in section 245(a)(1) are insufficient to establish a 'serious' felony. " (Rodriguez, supra, 17 Cal.4th at p. 261.)
However, the prosecution may go beyond the least adjudicated elements of the prior conviction and use the entire record of conviction to prove the defendant did in fact personally inflict great bodily injury, use a firearm, or use a deadly or dangerous weapon. ( Rodriguez, supra, 17 Cal.4th at pp. 261-262; People v. Guerrero (1988) 44 Cal.3d 343, 355-356.)
"Only if the record did not disclose the facts of the offense actually committed would the court presume that it rested only on the least statutory elements necessary for a conviction." ( People v. Myers (1993) 5 Cal. 4th 1193, 1200.)
The definition of Guerrero's "record of conviction" is an evolving one. "Appellate courts have generally held that documents considered within the record on appeal are part of the 'record of conviction' for the purposes of identifying a strike, at least where the underlying conviction resulted from a guilty plea." (People v. Houck (1998) 66 Cal.App.4th 350, 355.)
This includes, for example, the information charging the defendant (ibid.), the reporter's transcript of the preliminary hearing ( People v. Reed (1996) 13 Cal.4th 217, 223-230), the reporter's transcript of the defendant's guilty plea ( People v. Abarca (1991) 233 Cal.App.3d 1347), and certified records such as the abstract of judgment and fingerprint cards ( People v. Williams (1996) 50 Cal.App.4th 1405, 1413).
The record of conviction offered by the prosecution must provide the trial court with substantial evidence that the defendant's prior assault conviction was for a serious or violent felony. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant committed the prior offense beyond a reasonable doubt." ( People v. Bolin (1998) 18 Cal.4th 297, 331.)
Substantial evidence includes any reasonable inferences the trier of fact may draw from the conviction record. (See People v. Williams, supra, 50 Cal.App.4th at p. 1412)
Because a document referring simply to a violation of 245(a)(1) does not in itself provide substantial evidence that a prior assault constitutes a serious felony (see Rodriguez, supra, 17 Cal.4th at pp. 261-262), additional evidence is required to prove the defendant personally used a dangerous or deadly weapon, used a firearm, or inflicted great bodily injury. Without this additional proof, the assault cannot support a strike or a serious felony enhancement.
For example, in Rodriguez the prosecution offered only the 1983 abstract of judgment to prove the defendant's prior conviction. The abstract showed the defendant pled guilty to the charge of violating 245(a)(1) and the clerk noted the defendant's crime as "ASLT GBI/DLY WPN."
The court explained the abstract "proved nothing more than the least adjudicated elements of the charged offense." (Rodriguez, supra, 17 Cal.4th at p. 262.) The prosecution offered no evidence of the facts of the offense and therefore the court was required to "'presume that the prior conviction was for the least offense punishable under the law.'" (Ibid.)